Citation Nr: 0114554
Decision Date: 05/24/01 Archive Date: 05/30/01
DOCKET NO. 99-25 105 ) DATE
)
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Baltimore, Maryland
THE ISSUE
Entitlement to service connection for post-traumatic stress
disorder (PTSD).
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
The appellant and a psychiatrist
ATTORNEY FOR THE BOARD
Robert E. O'Brien, Counsel
INTRODUCTION
The veteran served on active duty from June 1975 to June
1995.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a May 1999 rating decision of the VARO
in Baltimore which denied service connection for PTSD.
FINDING OF FACT
The veteran suffered sexual trauma in service that has
resulted in her having PTSD.
CONCLUSION OF LAW
The veteran has PTSD that is the result of disease or injury
incurred during active military service. 38 U.S.C.A.
§§ 1110, 1131 (West 1991); 38 C.F.R. §§ 3.102, 3.303,
3.304(f) (2000).
REASONS AND BASES FOR FINDING AND CONCLUSION
Service connection for PTSD requires medical evidence
diagnosing the condition in accordance with VA regulations; a
link, established by medical evidence, between the current
symptoms and an in-service stressor; and credible supporting
evidence that the claimed in-service stressor occurred. If
the evidence establishes that the veteran engaged in combat
with the enemy and the claimed stressor is related to that
combat, in the absence of clear and convincing evidence to
the contrary, and provided that the claimed stressor is
consistent with the circumstances, conditions, or hardships
of the veteran's service, the veteran's lay testimony alone
may establish the occurrence of the claimed in-service
stressor. 38 C.F.R. § 3.304(f) (as amended by 64 Fed. Reg.
32,807-32,808 (1999)) (effective March 7, 1997) (implementing
the decision in Cohen v. Brown, 10 Vet. App. 128 (1997)).
See 38 U.S.C.A. § 1154(b) (West 1991) and 38 C.F.R.
§ 3.304(d) (pertaining to combat veterans).
The United States Court of Appeals for Veterans Claims
(Court) has acknowledged the VA's adoption of the Fourth
Edition of the American Psychiatric Association's Diagnostic
and Statistical Manual for Mental Disorders (DSM--IV),
effectively shifting the diagnostic criteria from an
objective standard to a subjective standard. See 61 Fed.
Reg. 52,695-52,702 (1996) (amending 38 C.F.R. §§ 4.125 and
4.126) see also Karnas v. Derwinski, 1 Vet. App. 308, 312-313
(1991) (where the law or regulations change while the case is
pending, the version most favorable to the claimant applies,
absent congressional intent to the contrary). "The criteria
now require exposure to a traumatic event and a response
involving intense fear, helplessness, or horror. A more
susceptible individual may have PTSD based on exposure to a
stressor that would not necessarily have the same effect on
'almost anyone.' The sufficiency of a stressor is,
accordingly, now a clinical determination for the examining
mental health professional." Cohen, 10 Vet. App. at 153
(Nebeker, Chief Judge, concurring).
The Court also noted that, where "there has been an
'unequivocal' diagnosis of PTSD by mental health
professionals, the adjudicators must presume that the
diagnosis was made in accordance with the applicable DSM
criteria as to both adequacy of symptomatology and
sufficiency of the stressor (or stressors)." Id. If there
is a question as to whether the report of examination is in
accord with applicable DSM criteria, the report must be
returned for further clarification as needed. Id.
In the present case, the veteran did not engage in combat
with the enemy. In such a case, the record must contain
credible supporting evidence which corroborates the veteran's
testimony or statements. Cohen, 10 Vet. App. at 147; Moreau
v. Brown, 9 Vet. App. 389, 395 (1996).
The final requirement of 38 C.F.R. § 3.304(f) is medical
evidence of a nexus between the claimed in-service stressor
and the current disability. However, such after-the-fact
medical nexus evidence cannot also be the sole evidence of
the occurrence of the claimed stressor. Moreau, 9 Vet. App.
at 396. In addition, medical nexus evidence may not be
substituted by application of the provisions of Section
1154(b). Clyburn v. West, 12 Vet. App. 296, 303 (1999);
Cohen, 10 Vet. App. at 138.
Resolving doubt in the veteran's favor, the Board finds in
this case that the evidence supports entitlement to service
connection for PTSD. More than one VA examiner has given a
diagnosis of PTSD. The various examiners therefore have
agreed on that diagnosis and they have related the diagnosis
to the veteran's report of sexual trauma in service. The
only remaining matter for consideration then goes to the
occurrence of the claimed in-service stressor.
The veteran's service medical records are without reference
to sexual trauma having been sustained by the appellant.
However, there are reports of VA outpatient visits on
periodic occasions beginning in 1998. At the time of one
visit in late April 1998, it was stated the veteran met the
criteria for PTSD related to multiple childhood traumas and
sexual assault in the military. She reported unwanted
memories of the events on a daily basis, and claimed that at
times she felt "paralyzed as a result." Psychological
testing done in May 1998 reportedly suggested a diagnosis of
PTSD.
The appellant was accorded a PTSD examination by VA in March
1999. Past medical history included no psychiatric
hospitalizations. She stated she had started her treatment
with a psychologist in the spring of 1998. The veteran
related that she was sexually abused as a child beginning at
age 8. She stated she was fondled by another adult. She
added that a distant relative exposed himself to her on one
occasion. She further indicated that she was raped in the
military at age 19 by two male "friends." She added that on
another occasion one of her co-workers while in the military
exposed himself to her. Findings were recorded and the
examiner stated that "I think the patient meets the criteria
of post-traumatic stress disorder and also major depressive
disorder..."
A February 2000 psychiatric evaluation update from a VA
psychiatrist shows that the veteran reported chronic "stress-
related symptoms" for the previous 12 years. She reported
having been fondled by an adult male neighbor at age 8. She
again described the episode when a relative exposed himself
to her, but she stated she was not believed when she told her
family about the incident. She claimed that six years later
it was found that the individual had exposed himself to
others as well and family members acknowledged her
experiences, but still were not very supportive. She stated
she did not experience symptoms related to these incidents,
but she indicated that it was "bothersome and puzzling that
no adults responded to the situation." The military trauma
reportedly occurred at age 19. She stated that she reported
the incident to her commanding officer who told the soldiers
to pay for the door they broke down to her room and stay away
from her. She was afraid of mentioning the rape incident to
the officer because at the time (mid-1970's) she believed her
credibility would be questioned. She gave the names of the
two soldiers who raped her and the psychiatrist noted that
"we were able to confirm with the base that these men were in
the base at the time the reported rape incident took place."
She was described as really upset and anxious when talking
about the episode. She stated that thoughts of the incident,
social isolation, difficulty with intimacy, compulsive
behavior, and depression had been exacerbated for the past
five years with the progressive decline in her social and
occupational functioning.
The examiner stated that the veteran met the criteria for
PTSD related to sexual assault in the military. It was
indicated that she reported unwanted memories of events on a
daily basis. She also reported intense psychological
distress and exposure to reminders of the events.
Additionally, she reported physiological reactivity, rapid
breathing, racing heart, and feeling paralyzed. She also
engaged in avoidant behaviors. She reported frequent
dissociative episodes when confronted with stressful
situations and she also reported difficulty concentrating
most of the time. Hypervigilance was also noted. She
reportedly began weekly individual therapy with a VA
psychiatrist eight months previously. She was described as a
credible historian, and the confirmation of the presence of
the soldiers on the same base where she was stationed at the
time of the reported incident, in the opinion of
the examiner, added credibility to her statements. It was
the opinion of the treatment team that she had PTSD related
to the rape while on active duty. The Axis I diagnosis was
PTSD.
At the time of a personal hearing before the undersigned in
April 2001, the psychiatrist who provided the psychiatric
evaluation update in February 2000 appeared and testified on
the veteran's behalf. He stated that he had seen her for
individual treatment on a weekly basis between sometime in
1998 and early 2000. The psychiatrist commented that in his
opinion the "issues" that happened to the veteran in
childhood were "relatively resolved" by the time she got into
the military. He expressed his opinion that she indeed had
PTSD which was the result of "her rape in active military
service." (Transcript, page 9).
Additional evidence of record includes a May 2001
communication from a VA physician who stated the veteran had
been followed since February 2000. Reportedly, the veteran
had been severely traumatized in the military and had had
persistent symptoms including numbing, avoidance of feelings
related to the traumatic event, intrusive thoughts, de-
realization, anhedonia, restricted affect, and compulsive
behavior. The veteran had reportedly been sexually assaulted
in the military and had repeated intrusive thoughts of the
sexual trauma. Although her mental history included abuse,
she was able to successfully complete her education despite a
self-described lack of confidence. It was reported that she
had no symptoms of anxiety or depression during her
childhood, with the exception of shyness. The physician
stated the veteran "clearly" continued to meet the criteria
for the diagnosis of severe PTSD.
Considering the record as a whole, and resolving doubt in the
veteran's favor, the Board concludes that a grant of service
connection is warranted. Although there is no in-service
evidence documenting the trauma or associated emotional or
duty-related difficulties, the evidence shows the onset of
medical and emotional problems not long after separation from
service. The recent testimony by the psychiatrist is very
convincing. He noted in his psychiatric evaluation update
dated
in February 2000 that, after the veteran named the two
soldiers who reportedly raped her while in service, he was
able to confirm with the military installation that the men
were assigned to the base at the time the assault took place.
He expressed his opinion that the veteran was a credible
historian and he was a most persuasive witness. The Board
does not find any indication in the evidence of record to
undermine the veteran's credibility. Additionally, there are
clear indications in the medical reports that the veteran was
in fact experiencing PTSD before her separation from service.
See 38 C.F.R. § 3.303(d) (2000) (service connection may be
granted for disability first diagnosed after service if the
evidence establishes that it was incurred in service). In
fact, the psychiatrist who testified in April 2001 indicated
that the veteran had been dealing with PTSD since before her
separation from service. Accordingly, the Board finds that
the evidence supports the claim of entitlement to service
connection for PTSD. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R.
§§ 3.102, 3.303, 3.304(f).
Finally, the Board acknowledges that the Veterans Claims
Assistance Act of 2000 (VCAA), Public Law No. 106-475, 114
Stat. 2096 (2000) has been enacted during the pendency of
this appeal. The VCAA has clarified VA's duty to assist
claimants in developing evidence pertinent to their claims
and eliminated the previous requirement that a claim be well
grounded before VA's duty to assist arises. Additionally,
certain notification requirements have been set out by the
new law. Nevertheless, given that the Board's decision
amounts to a grant of the benefit sought by the veteran on
appeal, the Board finds that further action to comply with
these new requirements is not necessary. See Soyini v.
Derwinski, 1 Vet. App. 540, 546 (1999) (strict adherence to
requirements in the law does not dictate an unquestioning,
blind adherence in the face of overwhelming evidence in
support of the result in a particular case; such adherence
would result in unnecessarily imposing additional burdens on
VA with no benefit going to the veteran. Sabonis v. Brown,
6 Vet. App. 426, 430 (1994) (remands which would only result
in unnecessarily imposing additional burdens on VA with no
benefit flowing to the veteran are to be avoided).
ORDER
Service connection for PTSD is granted.
MARK F. HALSEY
Member, Board of Veterans' Appeals